United States v. Byrnes

• Decision Date: 06 November 1967
• Docket Number: No. 30763-CD.,30763-CD.
• Court: U.S. District Court — Central District of California
• Parties: UNITED STATES of America, Plaintiff and Respondent, v. Jerome BYRNES, Defendant and Petitioner.

297 F. Supp. 860

UNITED STATES of America, Plaintiff and Respondent, v. Jerome BYRNES, Defendant and Petitioner.

No. 30763-CD.

United States District Court C. D. California.

November 6, 1967.

Wm. Matthew Byrne, Jr., U. S. Atty., and Robert L. Brosio and Gerald F. Uelmen, Asst. U. S. Attys., Los Angeles, Cal., for the Government.

Jerome Byrnes, in pro. per.

MEMORANDUM OPINION AND ORDER

CRARY, District Judge.

The within motion seeks an order vacating the sentence in the action, imposed February 25, 1963, following verdict of guilty. The petitioner is the defendant in the criminal proceedings and his "motion" herein will hereafter be referred to as "petition."

The sentence involved has been served and the petitioner now asks the vacation thereof under the provisions of Rule 35 of the Federal Rules of Criminal Procedure or by way of a Writ of Error Coram Nobis under authority of the "All Writs Statute", 28 U.S.C. § 1651(a).

In his petition to vacate the sentence, petitioner asserts that on August 1, 1967, he received an anonymous letter entitled "AN OPEN APOLOGY", and that attached thereto was the title page and pages 287-295, inclusive, of a book entitled "Inside the F.B.I.", authored by Norman Ollestad. (The letter and excerpt from the book appear as Exhibit A to the petition.)

It appears the book was copyrighted in 1967. On page 295 the author states, with respect to some discussion, apparently by F.B.I. personnel, relative to investigation of the letter appearing on page 293:

"`Listen, Wright, don't push it. Our squad leader already has had a heart attack over this. Literally had an attack. That's why he's been off since last week. Besides, you're in this pretty deep too.' Bernie furrowed his brow, trying to threaten the young man.

"`I'm not worried, Bernie, I didn't lie in court.'

"But after that slight skirmish they came to terms. They agreed to cover up the investigation of any possible perjury by one of their fellow F.B.I. agents because it would only have led to their own punishment by the Director, and as they knew so well, Hernstein was guilty anyway so they figured he might as well do his time in prison for attempting the bribe."

The Government now moves to dismiss the petition. Petitioner Byrnes, in his opposition to the Government's motion to dismiss, asserts (beginning line 19, page 4) he is not seeking to present new evidence concerning William Simon's testimony at the trial and to re-litigate issues decided by the Court on petitioner's previous motion for new trial (heard February 15 and 19, 1965) based on alleged perjury of F.B.I. Agent Simon as assertedly disclosed by the letter on page 293 of the book. The letter, as it appears in the book, refers to one "Hernstein" whereas in the photocopy of a letter considered at the hearing on the motion for new trial the name was Jerome Byrnes.

At page 4, line 28, of his points and authorities in support of his opposition to the motion to dismiss, petitioner states: "The issue at hand is not with Simon's perjured testimony but with the extraordinary revelations of admitted misconduct on the part of the U. S. Attorney's office."

The petitioner contends that, as Assistant United States Attorney, Ollestad had knowledge of a "* * * conspiracy to wrongfully deprive petitioner of a fair trial * * *" (line 12, page 5), which he withheld from the Court and the defense at the time of trial, that petitioner was denied his constitutional rights to a fair trial, and that consequently the sentence is illegal.

At page 5, line 31, of the points and authorities to his opposition, petitioner says: "Petitioner again reiterates that the petition is based on the newly discovered "misconduct" of the U. S. Attorney's office which substantially and prejudicially deprived Petitioner of a fair trial." Mr. Ollestad, at page 287 of his book, relates that the F.B.I. began an investigation on information that a Federal Agent of the United States Treasury Department, Internal Revenue Service, Alcohol and Tobacco Tax Division, was soliciting a bribe from a man suspected of violating the Federal firearms statute. From pages 287 to 295 he purports to relate in story form what went on in the F.B.I. relative to the case, from the initiating of the investigation to and including matters occurring long after the last trial of the defendant Byrnes (January, 1963) and after the motion for new trial (February, 1965). Ollestad sets forth in quotation marks the alleged statements of certain persons as having been made during the activities of various members of the F.B.I. in connection with the Byrnes case. As will be noted from review of the testimony at the hearing on the Government's motion to dismiss the instant petition for relief, infra, nearly all of the statements by Ollestad on pages 287 to 295, inclusive, of his book are hearsay. Ollestad took no part in the investigation or arrest of defendant Byrnes or in any of the trials or motion for new trial. In his book he is relating the purported actions and dialogue of members of the F.B.I. other than himself during the investigation, trial and thereafter. He prefaced his remarks, set forth at pages 287 to 295, by saying he suspected that fudging on one's testimony on one's oath in the Federal Court often happened "* * * but the only incident that I really knew of occurred in another jurisdiction at another time and I wasn't directly involved."

The evidence offered by petitioner in support of his petition is, in substance, a statement by Ollestad that he heard of alleged perjury by an F.B.I. Agent in the giving of testimony at petitioner's trials which fact he did not disclose to the defense or the Court and that persons in the F.B.I. agreed to "cover up" investigation of any possible perjury by one of their fellow F.B.I. Agents.

If Mr. Ollestad is guilty of misprision of a felony, as charged by the petitioner, by failing to disclose his knowledge of a conspiracy to not reveal or to "cover up" alleged perjured testimony, or an investigation thereof, that is a matter for consideration of the United States Attorney on proper complaint and investigation and is not grounds for a Writ of Error Coram Nobis. If Ollestad had reported the information petitioner says he had relative to the alleged conspiracy, it would have been the same as that considered by the Court in petitioner's motion for a new trial, to wit, the alleged perjury of F.B.I. Agent Simon in his testimony at the trials of the petitioner. Evidence on this issue was heard in detail at the hearing of petitioner's motion for new trial in February, 1965.

Mr. Ollestad was subpoenaed and testified in connection with the within hearing of the Government's motion to dismiss the petition herein. He stated that he was the author of the book, "Inside the F.B.I.", that he was an F.B.I. Agent from about September, 1960, to September, 1961, and an Assistant United States Attorney from about November, 1961, to November, 1963. He further testified that the portion of the book, pages 287 to 295 (Ex. A to petition), was based entirely on hearsay except for the testimony of Agent Simon, the "squad leader", at the trial, pages 291-92, and the alleged letter, page 293, which was involved in defendant Byrnes' motion for new trial heard February 15 and 19, 1965. He further stated that the words set forth in quotation marks were not intended as statements made as quoted by the persons indicated, some of whom were fictitious, but were his (Ollestad's) way of relating what he concluded from the hearsay statements he had heard made by F.B.I. and Treasury Agents. He observed that in his opinion these statements, which he heard commencing about one month after Byrnes' third trial in January, 1963, were supported by his check of the file, transcript, and so forth, he made in 1965, as discussed hereinafter. He could not give the names of any of these Agents but testified that they had been in his office from time to time in the Federal Building, Los Angeles, when he was an assistant United States Attorney, relative to cases other than the one involving petitioner Byrnes. He was unable to recall whether any of these Agents were F.B.I Agents who had worked on the Byrnes case or were present at Tallmadge's home on the day of Byrnes' arrest. The conversations, during which the alleged statements were made, started about one month after the completion of the last trial of defendant Byrnes and occurred over a period of several weeks thereafter. The comments were made sometimes in conversation with Ollestad and sometimes in conversation between Agents which he overheard. He testified he paid little attention to the statements at the time they were made because he thought they were by disgruntled Treasury Agents from the Alcohol and Tobacco Tax Division and F.B.I. Agents complaining about their Director, and he did not give the remarks any credence until sometime in 1965 when the letter (page 293) came to his attention and he examined the Court files in the Byrnes case and a portion of the transcript on appeal in that case. He testified he then for the first time, concluded that in his opinion F.B.I. Agent Simon had given false testimony at the trials in that he testified to certain statements he said he heard when he had his ear to the door of the bathroom in which Tallmadge and Byrnes were conversing on the day of Byrnes' arrest, whereas he (Ollestad) had concluded that Agent Simon "* * * hadn't heard any conversation at all." (Page 292.)

The alleged letter (page 293), referred to above, as marked for identification and discussed in detail during the hearing on defendant Byrnes' motion for new trial, was a non-authenticated, reduced in size, photostatic copy of a letter purportedly from Francis X. Gilmore, deceased supervisor in Charge of the Alcohol and Tobacco Tax Division in Los Angeles, to an unidentified addressee. The photocopy of the letter was received by defendant Byrnes' attorney, Marcia...